Failing the Frail

Karla Gabel knew something was wrong with her mother the instant she saw her.

Emelene Gabel, 86, had fallen twice and hit her head recently at Brookline Manor and Rehabilitative Services in Mifflintown. She had hardly touched her breakfast and lunch and now sat propped in a wheelchair, groggy and barely able to speak.

Gabel told staff but they disagreed it was a medical emergency. Despite her pleading, it wasn't until two hours later that the nursing home agreed to call paramedics. Her mother was airlifted to hospital and died a week later on May 16, 2015.

Gabel was convinced the home failed to recognize and quickly respond to her mother's rapid deterioration. She reported her concerns to the Pennsylvania Department of Health, but an investigation found nothing wrong.

Refusing to give up, Gabel contacted a health department supervisor and her state legislator. A second investigation found the home had failed to adequately monitor and react to her mother's condition and the department issued a major penalty.

But without her persistence, Gabel believes, the home's failure would never have been uncovered or punished.

Pennsylvania senior care advocates, attorneys and families interviewed by PennLive fear that too often the state allows major cases of negligence in nursing homes to slip through the cracks. The result, they say, is that care-related deaths and injuries go undetected, providing little incentive for nursing homes in Pennsylvania to prevent them in the future.

In addition, they say, every time a problem isn't detected in a bad home, it means their rating on the federal government's nursing home comparison website, Nursing Home Compare, is better than it should be. That makes it harder for families to avoid homes with a track record of bad care.

Karla Gabel's mother, Emelene Gabel, in a family photo.SEAN SIMMERS

Penny Ickles, the health department's communications director, said the department has worked to improve how it accepts and handles complaints in light of a recent state Auditor General's report.

Ickles noted that the state has improved its telephone system to take complaints, made the complaint form on its website more visible, revoked a ban on anonymous complaints imposed by former Gov. Tom Corbett, and added five new inspectors this year - bringing its total to 119.

"The audit report released last week outlined issue areas that, in the past, needed additional attention from the department," Ickles wrote. "In the year since requesting the audit, the department has already partially or fully addressed many of these concerns."

But critics say that while the state has made some important improvements, systemic problems remain.

Slipping through the cracks

At first blush, based on state data, it's difficult to determine how well the state is investigating complaints.

According to figures requested by PennLive, the department substantiated 34 percent of the 2,592 complaints it received in 2015. That rate is higher than recent years, which is likely a result of the department's decision to lift Corbett's controversial ban on anonymous complaints.

Despite the increase, it's hard to say if that substantiation rate shows whether the department is sufficiently investigating complaints. Opinions differ over what the 'right' rate is. Meanwhile, owing to different complaint policies in states, it's difficult to compare Pennsylvania's rate nationally.

But a PennLive analysis of nursing home deaths suggests that inspectors may be failing to investigate serious cases of negligence.

Under state regulations, nursing homes must report to the health department when deaths occur due to specific circumstances, like malnutrition, medication errors, injuries, or suicides. Those types of death have a high potential to be caused by negligence. Once the department gets a report, it's required to determine whether the home caused the death or could have prevented it with better care.

State regulations bar the public release of those reports, but the department told PennLive that it received 259 of them between 2013 to 2015. It added that it may have received more but, because of the way it categorizes certain death reports, it couldn't determine how many additional deaths that might include.

The department confirmed to PennLive that all 259 deaths were investigated as required but, asked how many of those investigations led to citations, the department said it didn't know because it doesn't track that data.

However, a PennLive analysis of state inspection reports found that the state only cited homes for 46 care-related deaths over that 2013 to 2015 time period.

Assuming PennLive found every citation for care-related deaths and that those cited homes filed death reports as required by state regulations, it means the department found that the nursing homes contributed to resident deaths in only 17 percent of 259 reported cases.

"I have no idea why so few would get citations," said Charlene Harrington, a professor emeritus at the University of California, San Francisco, and a national expert in nursing home care. "I'm mystified."

Asked whether it was concerned by that seemingly low rate, Ickles, the department's communications director, told PennLive that just because a home reports a death doesn't mean it was its fault.

For instance, she said, nursing homes have to report when residents die of sepsis - a blood infection - but that doesn't mean their condition was caused by bad care.

"An otherwise healthy-appearing resident can quickly deteriorate, be taken to a hospital and die from sepsis," Ickles wrote. "In this example, the nursing home has followed all of the proper protocols and procedures, but must report the death because the resident died of a reportable diagnosis."

Experts said that the department is correct, not every serious incident is the fault of a home.

But they added, based on the specific types of deaths that homes are required to report, it was still difficult to believe that homes weren't at fault in 83 percent of all reported deaths.

Most injuries, they said, are preventable if staff are adequately supervising residents and taking proper safety measures. Residents who commit suicide - a rarity given the frailty of most residents - typically show signs of depression that staff should have observed and treated.

And while cases of sepsis can be unavoidable, experts said it also can be the result of bad care. For instance, sepsis can be caused by bed sores, which are typically preventable and caused when staff fail to reposition residents as frequently as they should. That's one of the reasons why nursing homes are required to report deaths by sepsis.

Brian Lee, executive director of Families for Better Care, a national senior care advocacy group, said therefore, given the discrepancy between cited deaths and reported deaths, it was difficult to believe the state wasn't failing in some way.

"This data is shocking to me," Lee said. "This disparity between what you found and what they have on file is shocking to me. And it's a gross disservice to the public because they are unaware of these problems occurring."

Some experts added it was also unusual that the health department didn't track better data on those reported deaths and whether citations had been issued.

"I would think they would be very interested in knowing that," said David Stevenson, an associate professor of health policy at Vanderbilt University. "I think it's indicative of when different systems don't always talk very well to each other."

'A clean bill of health'

More than a dozen senior care advocates, families, nursing home workers, and attorneys interviewed by PennLive shared concerns about the thoroughness of nursing home investigations.

Many said that based on their own experiences it was difficult to believe only 46 residents died in Pennsylvania nursing homes between 2013 to 2015 due to avoidable circumstances.

"It's remote from the amount of avoidable deaths," said Marty Kardon, a Philadelphia-based attorney and the chairman of a nursing home litigation committee for the American Association of Justice.

Kardon estimated that he works on about 25 nursing home cases at a time, mostly relating to allegations of wrongful death. He believes the state routinely fails to cite homes.

Karla Gabel's 86-year old mother, Emelene Gabel, with her husband in a family photo.SEAN SIMMERS

"I would say there's many cases that I have - over half - that I have clear instances where the regulations weren't followed and actual harm has occurred and the Department of Health surveyors have come through and not found anything wrong with it," he said. "They give them a clean bill of health."

Kardon has some sympathy for state inspectors. He said he imagines it can be difficult to pinpoint if a home is at fault in certain cases of negligence. For instance, incidents where a resident has received bad care in one nursing home, gets hospitalized, and is then transferred to a different home.

But Kardon said he frequently sees cases where he can't understand how inspectors fail to catch what he views as clear violations.

Kardon pointed to a case he handled in 2013 involving a man who required regular blood testing. Several months passed where the home didn't test his blood and it became dangerously thin. He eventually died.

"The Department of Health went in there and found nothing wrong," Kardon said. "Now, how they found nothing wrong in that case is beyond me."

Robert Daley, a Pittsburgh attorney who specializes in nursing home litigation, shared similar concerns.

Daley said that if PennLive's figure was correct it would mean there were only about 15 avoidable deaths per year in a state with a nursing home population of about 80,000 residents.

"I believe I have more cases here in the office right now that fit that category," he said. "Whether or not that's a problem with the Department of Health or some other thing I don't know, but anyone you tell that figure to is going to think that's low."

Overworked, poorly trained

Diane Menio, executive director for CARIE, a statewide advocacy group for the elderly based in Philadelphia, said she heard frequently from residents and families who feel inspectors have failed to adequately investigate complaints.

However, Menio added, following the health department's pledge to improve nursing home oversight last year, she felt investigations were getting better.

"I'm not going to tell you that the problems are over but we are seeing some improvement and I think they should get a little credit for it," she said.

But others are skeptical. Sam Brooks, an attorney with Community Legal Services Philadelphia, said he still routinely sees cases where inspectors fail to substantiate complaints he feels are valid.

Brooks helps people file complaints about bad nursing home care. He believes, at its root, the health department has developed a culture in which inspectors rely too heavily on the testimony of nursing home managers over other evidence.

Brooks also believes that some inspectors have a weak understanding of nursing home regulations.

He pointed to a case he recently handled where a Philadelphia nursing home threatened to discharge a mentally-impaired man to his elderly mother. His mother would have been unable to take care of him, meaning his discharge would have been unsafe.

Brooks helped the family file a complaint, which triggering an investigation. But the inspector found no problem with the home's conduct.

Perplexed, Brooks contacted the inspector himself.

"I suggested she should read the regulations," he said. "She never talked to me. She never talked to the resident or the resident's mother. She just called and spoke with the administrator."

Sue Santola

Ron Lebovits, a Philadelphia-based attorney who leads his firm's elder abuse and neglect division, said he also believes inspectors rely too heavily on staff testimony.

Lebovits pointed to a 2014 case he handled where a resident fell in the dining room of her nursing home and fractured both hips.

Nursing home staff told the inspector that the resident moved around her unit independently with a walker. The state ultimately concluded that the home couldn't have prevented her fall.

But Lebovits said that the nursing home's own records clearly showed that the resident required supervision and verbal cues while using a walker. The records also showed that the resident wasn't supervised when she fell.

"The investigator either did not read the patient's records or the investigator did not understand the patient's records," he said

Overall, Lebovits believes that many of the mistakes that inspectors make are largely because they're overworked. Too often, he thinks, they're hurrying from one investigation to the next as quickly as possible.

Scott Lynn, the coroner in Montour County, is one official who is surprised he doesn't hear more often from inspectors.

Lynn, like other Pennsylvania coroners, examines deaths in nursing home when the circumstances appear suspicious or unusual.

"I can tell you on most of the nursing home cases I investigated I almost never hear from the Department of Health," he said. "You would think they would want to get my side of things."

Lynn recalls an occasion when he called the department to report a death he thought sounded unusual. He struggled to find someone to speak with and never heard back from the department.

"One has to wonder, just at what level are they really investigating them if they are not talking to investigators?" Lynn said.

Boots on the ground

For Karla Gabel, her own struggle with the department is still raw.

Two months after her mother died, Gabel remembers taking the day off work. She spent almost an hour on the phone speaking with a department representative to file her complaint.

Karla Gabel at the site of her mother's tombstone. Gabel's' 86-year old mother, Emelene Gabel, died in May, 2015 shortly after she was admitted to Brookline Manor in Mifflintown, Pa.SEAN SIMMERS

At the end of the call, Gabel offered to send the department her mother's death certificate and a written account of what she saw at the nursing home. But the representative declined both.

It was only about a week later that Gabel received the department's letter saying it found no wrongdoing.

"I just looked at this and I was like, 'are you kidding me?'" Gabel said, holding the original letter.

While the department re-opened its investigation after Gabel pushed back, Brooks, the attorney for Community Legal Services Philadelphia, said her case is likely a rarity. Most families, he believes, don't challenge the department's findings.

"Once they get to us they are exhausted, they are tired, and they don't want to do it anymore," he said.

For investigations to improve, Brooks said, he believes the state has to offer major reforms: like a bigger emphasis on ensuring that nursing homes are reporting serious incidents and extensive retraining of its inspectors.

"This is the big, big thing because the boots on the ground are really going to protect the nursing home residents," he said. "In the end, those are the reforms that are going to save lives."

Daniel Simmons-Ritchie is an investigative reporter with PennLive and the Patriot-News. He has earned state and national awards for work on a variety of subjects, including health care, criminal justice, and the environment.